MICHAEL F. URBANSKI, District Judge.
This matter comes before the court on Plaintiff RLI Insurance Company's ("RLI") objections, ECF No. 336, to United States Magistrate Judge Joel C. Hoppe's November 13 discovery order ("discovery order"), ECF No. 317, as well as Defendants Nexus Services, Inc., Libre by Nexus, Inc., and Homes by Nexus, Inc.'s ("Nexus") objections, ECF No. 335, brought pursuant to Rule 72 of the Federal Rules of Civil Procedure. This discovery dispute arises from various discovery motions filed by RLI and Nexus to compel production of documents and responses to interrogatories. Following a November 17, 2019 hearing, Judge Hoppe entered the discovery order addressing these motions, to which RLI and Nexus now raise their objections. Nexus raises three objections: (1) Buddi US, LLC's ("Buddi") production of the "last ping," or GPS information, of each of RLI's bonded principals; (2) the production of a privilege log; and (3) the production of a list of all private and public open investigations or inquiries of Nexus for violations of laws or regulations since 2016, as well as communications with those investigating agencies and any public or non-public filings. RLI requests a modification of the discovery order to require Nexus to hand over all information from the Capsule database and objects to "any ruling that would preclude or unduly delay RLI from obtaining Capsule database information regarding all of RLI's bond principals and all location information for all RLI bonded principals, such as the tracking information maintained by Buddi" (emphasis removed). ECF No. 336 at 3.
The court dispenses with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
Both parties ask this court to overturn portions of Judge Hoppe's discovery order. Rule 72(a) of the Federal Rules of Civil Procedure permits a party to submit objections to a magistrate judge's ruling on non-dispositive matters, such as discovery orders. Fed. R. Civ. P. 72(a);
Judge Hoppe's discovery order requiring Buddi to produce "all information about the operation of the bond program with Nexus or Libre as well as the `last ping' of each of RLI's bonded principals, including the last recorded time, date, and location," is not contrary to law. ECF No. 335 at 2. Nexus argues that the requested location data "is neither relevant to RLI's claims nor important to resolving the issues in the case," therefore not discoverable. ECF No. 335 at 4. Federal Rule of Civil Procedure 26(b)(1) permits discovery of "any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case." Fed. R. Civ. P. 26(b)(1). "The objecting party carries the burden of proving that the challenged discovery production should not be permitted."
Nexus contends that the physical location of bonded principals is not relevant to the resolution of a breach of contract claim. Nexus asks this court to limit this finding and the scope of the discovery order to location information that does not include a bonded principal's current location, explaining that "location information can mean several different things." ECF No. 335 at 5. Indeed, at the November hearing, Nexus stated that it can refer to an individual's address, which is in the Capsule database, or it can mean GPS coordinates for where an individual was on a particular date and time. ECF No. 318, Hr'g Tr. 47:5-9. Specifically, Nexus objects to RLI's right to obtain most current location data, or the latest GPS coordinates submit by the real-time tracking system used by Buddi. ECF No. 335 at 5-6.
First, Nexus suggests that RLI does not need to know current location of bonded principals to assess whether Nexus has breached the contract.
However, Nexus errs in conflating relevance under Rule 26 with information sensitivity warranting a protective order. Rule 26(b)(1) is broadly applicable, and most recent location information for immigrants falls within its ambit. In its October 2, 2019 hearing, the court held that "all information related to the bond principals, including location information, is relevant, is discoverable, subject to a protective order." ECF No. 288, Hr'g Tr. 80:2-7. Judge Hoppe independently held the same, at the November 6 hearing: "I think there needs to be some data. I think it's discoverable to have some data about where these principals are, not just a phone call to an employer or something saying is this person showing up for work." ECF No. 318, Hr'g Tr. 83:1-4. RLI argues that both the "last ping" for bonded principals as well as the location information from Capsule is relevant to their risk assessment, based on their review of the initial sampling ordered by Judge Hoppe, because Nexus "is not tracking approximately fifty percent of bonded principals, but rather making unilateral determinations to no longer monitor bonded principals, due to inter alia, stated `humanitarian' purposes." ECF No. 336 at 3. Presumably, this increases RLI's risk exposure. Judge Hoppe ascertained that it is relevant to RLI's risk exposure to ascertain whether bonded principals are being tracked, and if they are being tracked, where they are and if they are in compliance with the terms of their bond, given the high rate of breached bonds. The court agrees.
Finally, while the court remains concerned about unnecessarily exposing the bonded principals to the unwarranted risk of deportation, the sensitivity of information is appropriately addressed by a protective order. ECF No. 288, Hr'g Tr. 80:2-7. The protective order prevents RLI from sharing the location data regarding the bonded principals with other parties, obviating this concern to the extent possible. ECF No. 328.
Nexus's objections to RLI receiving current location information from Buddi are
Judge Hoppe's discovery order requiring both RLI and Nexus to produce a privilege log alongside all the information and documents within their care, custody, and control that the court has found to be discoverable is not contrary to law. ECF No. 317 at 4. Nexus argues that Rule 26(b) does not require a "document-by-document" privilege log to assert privilege; however, a court may still mandate it if it finds one required based on the type of privilege asserted. Fed. R. Civ. P. 26(b)(1). To facilitate its determination of privilege, a court may require "an adequately detailed privilege log in conjunction with evidentiary submissions to fill in any factual gaps."
Regardless, the court finds persuasive Nexus's argument that a categorical privilege log would serve the purpose of asserting privilege and explaining redactions without imposing undue burden on the parties, given the number of documents produced and discoverable in this case. ECF No. 335, at 7 ("Nexus has produced over 100,000 pages of documents with redactions required by this Court's previous July 2, 2018, Order, ECF No. 60").
Nexus's objection that Judge Hoppe's order is contrary to law is
Nexus objects to Judge Hoppe's discovery order, arguing as contrary to law under Rule 26(b)(1) Judge Hoppe's order that they disclose:
ECF No. 317 at 5-6. Specifically, Nexus claims that the order to disclose non-public investigations improperly balances "relevance, proportionality, and other factors of Rule 26(b)(1)." Fed. R. Civ. P. 26(b)(1). It argues that "no agency can shut down Nexus without making an investigation public." ECF No. 318, Hr'g Tr. 160:11-12. Therefore, Nexus contends that if RLI is using this information for risk-assessment purposes, then access to public investigations alone should suffice. ECF No. 318, Hr'g Tr. 156:12-13. However, Judge Hoppe's statements at the November 13, 2019 hearing clearly indicate his intention to include all public and non-public investigations since 2016, including dormant investigations, because these would be relevant to RLI's ability to understand what their risk exposure has been since 2016, when this case was originally brought. ECF No. 318, Hr'g Tr. 167-72. He stated: "It strikes me as highly relevant, if Nexus is being investigated, that RLI would need that information to assess its risk." ECF No. 318, Hr. Trs. 177:24-178:7. The fact that an investigation has not yet been made public does not in any way suggest that its existence does not help RLI inform their risk assessment of liability exposure. Indeed, the fact of an ongoing investigation can suggest concerns about Nexus's bottom line or cast light on suspicious or risky behavior at least sufficient to justify the existence of an ongoing investigation.
In support of their objection, Nexus cites to a securities case where the court held that a company had "no generalized duty" to disclose non-public investigations. ECF No. 335 (citing
Therefore, Nexus's objections to Judge Hoppe's order that they turn over all private and non-public investigations since 2016, filings related to said investigations, and communications with the relevant regulatory bodies is hereby
RLI objects to the discovery order, claiming it understood the discovery order as a preliminary ruling that the court would revisit at a later date after RLI had the opportunity to review the "initial sampling" of Capsule database content that Nexus was ordered to produce.
An appropriate